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Emmanuel Nwaebonyi V. The State (1994) LLJR-SC

Emmanuel Nwaebonyi V. The State (1994)

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The appellant, Emmanuel Nwibo Nwaebonyi was arraigned before the High Court Abakaliki in Abakaliki Judicial Division, charged with the following offence –

“OFFENCE: Murder contrary to Section 319(1) C.C

Particulars of Offence

Emmanuel Nwibo Nwaebonyi alias Amasiri Nwaebonyi on or about 28th day of July, 1980 at Ndiogbaga Inyimagu Izzi in Abakaliki Judicial Division murdered Nwaji Nkwagu.”

He pleaded not guilty to the charge. The prosecution thereafter called a total number of 9 witnesses to prove the charge. At the close of the prosecution’s case the appellant gave evidence in his own defence but called no other witness.

The learned trial Judge, Offiah J. considered the evidence adduced and found the appellant guilty as charged and sentenced him to death by hanging.

In exercise of his constitutional right, the appellant appealed to the Court of Appeal Enugu Division and in a judgment of that court delivered by Oguntade J.J.C.A. (concurred to by both Awogu and Akintan, J.C.A.), the appellant was dismissed, confirming the conviction and sentence on the appeal by the trial court.

Before I consider the appellant’s appeal in this court, I consider it pertinent to give a resume of the prosecution’s case, leading to the appellant’s conviction, as follows:-

P.W.1 and the deceased were married under native law and custom. The appellant was making sexual advances to the deceased which she always rebuffed. When P.W.1 got to know of these immoral advances, he challenged the appellant which the latter denied. The near relations of both the appellant and P.W.1 intervened to settle the issue in a customary way. As a result the appellant was to take an oath in support of his denial that if the accusations against him were true, he would not have a living child. The appellant took the oath.

After the oath, the appellant’s wife (P.W.9) became pregnant on three occasions and each of the three children died shortly after birth. The appellant approached P.W.1 so that the effect of the oath he had taken might be neutralised. P.W.1 agreed and the appellant brought some wine to neutralise the effect of the oath, which the appellant and P.W.1 drank together. Thereafter, the appellant’s wife got pregnant again and delivered a baby which again died after birth.

The appellant decided to take a revenge on P.W.1. So on 28-7-80 which was a market day and when P.W.1 and other fellow villagers were away to the market the appellant sneaked into P.W.1’s house, matcheted his wife and their two children to death and set the house on fire, after which he escaped. He was not arrested until on 24-11-85 when he was identified to P.W.3, Sgt. Gabriel at Ugwogo Nike market square Enugu who immediately arrested him and brought him back to Iziogo where he was charged and cautioned in Ibo language as a result of which he made a statement confessing the offence.

In this Court, two grounds of appeal were filed from which the following two issues were raised –

“(a) Whether the appellant was rightly convicted solely on his confessional statement Exh. “A”.

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(b) Whether the prosecution has proved its case beyond reasonable doubt as required under S. 137 of the Evidence Act.”

Learned counsel for the appellant, N. Abiodun Dabiri Esq, dealt with the two issues together. He referred to some decided cases and submitted that the appellant was rightly convicted on Exh. A, his voluntary confessional statement alone and that there was enough corroborative evidence to Exhibit A. He particularly referred to the evidence of P.W.1, P.W.6 and P.W.7 in that regard. He said the concurrent findings of both the trial court and the Court of Appeal are fully supported by unassailable evidence and could therefore not be faulted. He urged the court to dismiss the appeal.

In reply to the appellant’s brief P.C. Akubuilo, DPP, Enugu State and learned counsel for the respondent filed, with leave of the court as he was out of time, the respondent’s brief in which he adopted the two formulated issues in the appellant’s brief. And after reviewing the appellant’s case and the issues raised, he referred to some decisions of this court and urged us to dismiss the appellant’s case for want of merit.

Since this is a murder case, I intend to treat the issues formulated notwithstanding the submissions of learned counsel on both sides to the effect that they have nothing to urge in favour of the appellant. I shall deal with the two issues seriatim.

Issue 1 deals with Exhibit AA 1, the confessional statement made by the appellant in Ibo and then translated into English language.

Section 27(1) of the Evidence Act defines confession as follows –

“27(1) A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime.”

Subsection (2) of S. 27 goes on to state that –

“Confessions, if voluntary are deemed to be relevant facts as against the persons who made them only.”

As regards the voluntariness of Exh. AA, I have myself perused though the evidence on the issue and I am satisfied that it was voluntarily made by the appellant. This was confirmed by the evidence of P.W.3 Sgt. Gabriel Nnaji, who arrested the appellant and on the same day, cautioned him in Igbo language and recorded the same in the language made. It was thereafter translated into English. The Ibo version was admitted in evidence as Exh. A while its English translation was admitted as Exh. A. 1. The appellant was taken before P.W.5, Daniel Obedon, a Deputy Superintendent of Police before whom P.W.4 Sgt. Daniel Nwode read the Ibo version to the appellant and which he (the appellant) confirmed its correctness by thumb-printing it. The trial Judge, after reviewing the evidence of P.W.3, P.W.4 and P.W.5 concluded –

“I must say that I believe the evidence of Obedon P.W.5 and Daniel Nwode. I am satisfied beyond doubt and find that it was the accused who made Exh. A and that he made it voluntarily.”

In affirming the above finding of facts, the Court of Appeal commented thus:-

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“It was never said that P.W.3 did not speak the language in which the appellant made his statement. It seems to me that bringing in P.W.4 to interprete the statement of the appellant to him before P.W.5 was if anything a remarkable act of fairness to the appellant. It placed the appellant in a better position to deny the voluntariness of the statement if he had previously been induced to make it.

The same may be said of the argument that a period of two weeks elapsed before the appellant was brought before P.W.5 to confirm or deny that he made Exh. A; there is no time limit for bringing an accused before a superior police officer to confirm or deny the voluntariness of a written statement credited to him and I do not think that a period of two weeks was unreasonably long. It is in fact my view an advantage to an accused that the period between making a statement and the confirmation or denial of the voluntariness of the statement is long for it allows the accused enough time to reflect more about the implications of the confession alleged to have flowed from his lips.”

These findings of fact by both the trial court and the Court of Appeal are fully supported by the credible evidence reviewed and accepted. They are on firm ground and are unimpeachable. See Onyejekwe v. The State (1992) 4 S.C. 1; (1992) 3 NWLR (Pt.230) 444.

In Rex v. Sykes (1913) 8 CR. Appl Rpt. 233 the leading authority on the weight to be attached to a confessional statement whether or not retracted, followed by the West African Court of Appeal in Kanu v. The King (1952) 14 WACA 30 and thereafter by this Court in several of its decisions such as, Dawa v. The State (1980) 8 -11 SC 236; The Queen v. Obiasa (1962) 1 All NLR 651; (1962) 1 SCNLR 137; Obosi v. The State (1965) NMLR 129 and Onochie v. The Republic (1966) NMLR 307 to mention but a few, the following rules were stated in order to decide the weight to be attached to it –

  1. Is there anything outside the confession to show that it is true
  2. Is it corroborated
  3. Are the relevant statements made in it of facts, true as far as they can be tested
  4. Was the prisoner one who had the opportunity of committing the murder
  5. Is his confession possible
  6. Is it consistent with other facts which have been ascertained and have been proved

The evidence of P.W.1, P.W.3, P.W.7 and Exh. AA1 established beyond any shadow of doubt that the appellant had both the motive and capability of committing the crime he was charged with and convicted. There is evidence outside Exh. AA1 both direct and circumstantial that goes to show that its contents were true. P.W.1 gave evidence of the suspicious immoral sexual advances by the appellant to the deceased, wife of P.W.1. This culminated in the appellant performing a traditional oath which resulted in the death of 4 children born to him all at their infancy. The story narrated by the appellant in Exh. A as regards his approach to P.W.1 to forgive him for his immoral sexual approach to the deceased and the bringing of some wine of P.W.1 to celebrate and reverse the effect of the oath was corroborated by the evidence of P.W.1. Immediately after the brutal killing of the deceased and her two children, the appellant fled the village and was arrested by P.W. 3 at Ugwogo market, Enugu. This was about 5 1/2 years after the incident. It was then that the police had the opportunity of cautioning the appellant and he volunteered Exh. AA1. The evidence given by P.W.7 described the wounds on deceased that caused her death. This is consistent with the type and nature of wounds mentioned by the appellant in Exh. AA1. These pieces of evidence, direct and circumstantial show that the appellant had the motive and opportunity to commit the offence and also connected him with its commission. The retraction of Exh. AA1 by the appellant in no way affected its admissibility and credibility.

Even without these corroborative evidence, decisions of this court abound to show that a trial court can convict an accused person on his free and voluntary statement alone. See Queen v. Obiasa (1962) 1 All NLR 691; (1962) 1 SCNLR 137; Yesufu v. The State (1976) 6 SC. 167; R v. Kanu (1952) 14 WACA 30 and Onochie v. The Republic (1966) NMLR 307; Obosi v. The State (1965) NMLR 129 and Egboghonome v. The State (1993) 7 NWLR (Pt.306) 383.

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Having accepted the truth of the confession contained in Exh. AA1 the learned trial Judge was perfectly justified in finding the appellant guilty of the charge against him and the Court of Appeal was also right in affirming the conviction and sentence on the evidence accepted and evaluated by the trial Judge. The provisions of Section 137 of the Evidence Act was fully satisfied and complied with.

I agree with learned counsel on both sides that there is nothing they could urge in favour of the appellant. The concurrent findings of fact made by the trial court and the Court of Appeal are of the utmost relevance in answering the two issues raised in this appeal; they are conclusive and fully answered the issues of law raised in this appeal. They are justified and could not be faulted and I see no reason to interfere with them. See Onyejekwe v. The State (1992) 4 SC 1 (1992) 3 NWLR (Pt.230) and Mbele v. The State (1990) 4 NWLR (Pt.145) 484.

The appeal lacks merit and it is accordingly dismissed. The conviction and sentence passed on the appellant by the trial court and affirmed by the Court of of Appeal are hereby confirmed.


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